The Exercise of the Right to a Fair Trial in the Era of the COVID-19 Pandemic

Introduction

In the early months of 2020, the world was faced with a challenge of unprecedented scope and magnitude in the 21st century: the rapid development of the SARS-CoV-2 virus epidemic. The first case of COVID-19 disease caused by this pathogen was reported in Poland on 4 March 2020. In turn, the COVID-19 epidemic was declared a pandemic by the World Health Organisation on 11 March 2020. The epidemiological situation forced a number of significant social changes. Face-to-face human contact had to be minimised, including the closure of many public institutions and a shift to remote working wherever possible. A number of far-reaching changes had to be made to the existing legal system, including the adaptation of the rules governing the operation of the judicial system, which had also been significantly affected by the pandemic.

The judiciary has been subject to significant restrictions. The regulations most relevant to the civil procedure model were adopted in the so-called COVID-19 Special Act, i.e. the Act of 2 March 2020 on Special Solutions Related to the Prevention and Control of COVID-19, Other Infectious Diseases and Crisis Situations Caused by Them¹. In the early stages of the pandemic, all procedural time limits were suspended, effectively freezing the functioning of the judiciary. Court buildings were partially closed to the public and emphasis was placed on the computerisation of civil proceedings to allow remote participation in court hearings and the introduction of solutions for electronic communication with parties to proceedings. Undoubtedly, the new instruments introduced by the legislature to combat the spread of the coronavirus also had a significant impact on the work of the courts.

In the public discourse, representatives of the academic and legal communities raised a number of objections to the solutions introduced. They were also raised by the courts and the Polish Ombudsman. The most important of these concerns related to the possible impact of the new rules on the right to a fair trial. This right, also referred to as the right to court, which is regulated primarily in Article 45(1) of the Constitution of the Republic of Poland and in a number of other international legal instruments, is the basic means of protecting an individual against the arbitrary actions of public authorities and is one of the most important principles of a democratic rule of law. Due to the importance of the matter to which the doubts expressed in the public debate relate, they require in-depth consideration.

The research problem to be addressed below is the impact of selected provisions of the COVID-19 Special Act on the civil procedure model, on the one hand, and on the individual’s right to a fair trial, on the other. The lively public debate and academic discourse, as well as the importance of the legal issues raised, which require further analysis, make the problem raised here worthy of discussion in a separate work. So far, the issue has been the subject of individual academic papers and studies in the form of commentaries or guides to the amended provisions. In the last three years, several academic articles have been published, but they can only contribute to the further discussion of the amended model of civil procedure in the era of the COVID-19 pandemic. At the same time, there is no monography that deals with the changes in a comprehensive and systemic way. None of the studies to date has examined the changes introduced by the COVID-19 Special Act in relation to the issue of the right to a fair trial. Despite the fact that more than three years have passed since the entry into force of the COVID-19 Special Act, the jurisprudence on the institutions discussed in this work is not extensive. It must be stressed that, despite the end of the COVID-19 pandemic, the problems presented are still relevant, as some of the cases initiated during this period are still pending.

The issues presented in the following chapters also have a practical dimension, since they attempt to discuss the different approaches taken by the courts in applying the instruments provided for by the COVID-19 Special Act and to draw attention to the need to develop a uniform procedural model in order to guarantee an adequate level of protection of the parties’ procedural rights. The paper also puts forward a number of de lege ferenda postulates, the implementation of which would make it possible to introduce some of the institutions discussed into the civil procedure model on a permanent basis and to regulate them in a comprehensive manner. A more complex discussion of the issues addressed in this work seems necessary in order to determine the status of a party in civil proceedings in the era of the COVID-19 pandemic, to compare it with the status of a party before the introduction of a number of new procedural institutions into the legal order, and to present a prognosis of the position of an individual after the end of the COVID-19 pandemic.

The primary objective of the analysis is to present the most significant changes in the model of civil proceedings introduced by the COVID-19 Special Act and to examine whether the adopted provisions fully implement the standard of the right to a fair trial. This can be achieved by defining and comparing the standards of the right to a fair trial resulting from the Constitution of the Republic of Poland, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. The study also aims to show the differences between the models of protection of the right to a fair trial defined in the constitutional, European and EU order. The analysis also seeks to resolve fundamental problems that arise in practice in the application of the provisions discussed by the courts. In addition, the study aims to assess whether any of the discussed institutions should be permanently introduced into the Code of Civil Procedure and, if so, under what conditions.

The provisions introduced into the civil procedure model in the course of the efforts to counteract COVID-19 will be examined with regard to the following issues:

1. 1) remote hearings (Article 15zzs¹(1) points 1 and 2 of the COVID-19 Special Act),
2. 2) hearing of the case in closed session (Article 15zzs¹(1) point 3 and Article 15zzs² of the COVID-19 Special Act),
3. 3) composition of the court (Article 15zzs¹(1) point 4 of the COVID-19 Special Act),
4. 4) electronic service of court documents (Article 15zzs⁹ of the COVID-19 Special Act),
5. 5) suspension of procedural time limits (Article 15zzs of the COVID-19 Special Act)
6. 6) suspension of public auctions in the course of real estate enforcement (Article 952¹ § 5 of the CCP) and the execution of eviction orders (Article 15zzu of the COVID-19 Special Act).

The above provisions contained in the COVID-19 Special Act (and in one case directly in the CCP) had the greatest impact on the conduct of civil proceedings during the pandemic and on the realisation of the individual’s right to a fair trial. Some of them were permanently incorporated into the rules of civil procedure after the end of the pandemic. The issues discussed are therefore still relevant.

The main thesis of the research is that the normative solutions adopted by the legislator and listed above do not fully achieve the declared purpose justifying their introduction and do not comply with the minimum standard of the right to a fair trial guaranteed to the individual, and thus remain in contradiction with Article 45 of the Constitution, Article 6(1) of the ECHR and Article 47 of the CFR.

The research problem outlined above also allows for the identification of a research hypothesis that, after the end of the COVID-19 pandemic, remote court hearings and the possibility of deciding cases in closed sessions, as well as electronic service of court documents, may constitute a permanent element of the civil procedure model and significantly contribute to increasing its efficiency, provided that normative changes are adopted that allow for the adjustment of these institutions to the minimum standard of the right to a fair trial.

The following questions must be answered before the thesis can be examined:

1. 1) How is the right to a fair trial defined in the Constitution, the ECHR and the CFR, and are the standards derived from these instruments identical, and what is their scope of application?
2. 2) What is the real purpose of the changes to the civil procedure model introduced by the COVID-19 Special Act, and is this purpose consistent with the legislator’s stated aim of protecting health?

The entire study is divided into eleven chapters. Chapters I and II analyse the model of protection of the right to a fair trial in the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. There is no doubt that the solution of the research problem presented at the beginning requires first of all a detailed explanation of the concept of the right to a fair trial. To this end, Chapter I attempts to define the scope of the right to a fair trial in civil matters under the European Convention on Human Rights by analysing the various components of this right, i.e. the right of access to court, the right to impartial, independent court and to court established by law, the right to a fair procedure before a court and the principle of openness and expediency of proceedings. Chapter II discusses the standard of the right to a fair trial under the EU Charter of Fundamental Rights. Given the nature of this legal instrument, the discussion is preceded by an outline of the historical background to its adoption and an explanation of the scope of the Charter. The purpose of this is to identify the cases in which an individual may invoke the right to a fair trial under the Charter of Fundamental Rights.

Chapters III and IV deal with the right to a fair trial in the domestic legal order. The considerations in Chapter III focus primarily on the right to a fair trial in the constitutional order. The analysis carried out serves to define the concept of the right to court under Article 45(1) of the Constitution of the Republic of Poland and therefore, as in Chapter I, the considerations in Chapter III concern the right of access to court, the concept of a competent, independent and impartial court, the right to a fair procedure before a court and the principle of openness and expediency of proceedings. This discussion will allow for a comparison of the Convention and EU standards with the constitutional standard. This, in turn, will allow for the development of a single standard of the right to a fair trial, which seems necessary for the later detailed considerations in the following chapters of the work. Chapter IV is devoted to questions of the implementation of the right to a fair trial on the basis of the Code of Civil Procedure². This part presents the concept of procedural principles and discusses the principles of equality, expediency and openness of proceedings, also indicating the basic manifestations of their implementation in the CCP. These principles are fundamental to the realisation of the right to a fair trial in civil proceedings. Moreover, the introduction of the provisions of the COVID-19 Special Act discussed in this work has left its mark on the implementation of the procedural principles just mentioned, which is why it is necessary to discuss them in detail.

Chapter V, entitled ‘The COVID-19 pandemic as a premise for the limitation of civil rights and freedoms’, provides an introduction to the issue of normative changes relevant to the model of civil procedure in the era of the pandemic. The chapter first discusses the question of the validity of the restrictions resulting from the COVID-19 Special Act over time. For this purpose, it was necessary to establish a time calendar of legislative changes introduced in Poland during the COVID-19 pandemic, including a description of the type of instruments introduced into the legal system. The chapter analyses the question of the validity of individual provisions of the COVID-19 Special Act over time in the context of their compliance with the principle of proportionality of the restriction of civil rights and freedoms. The reason for placing these considerations in a separate chapter is that the way in which the issues discussed are regulated is common to most of the institutions of the COVID-19 Special Act examined. The assessment of whether the legislative technique applied can be considered correct in the light of the principle of proportionality has allowed relevant conclusions to be drawn regarding the compatibility of the regulation with the right to a fair trial. The chapter also presents the solutions adopted in other EU countries to combat the pandemic. These considerations contribute to the further analysis of the instruments introduced into the legal order by the Polish legislator. At the same time, the observations made in this part of the chapter are not intended to be a comprehensive discussion of foreign legislation, but only to outline the background, which will make it possible to identify similarities and differences between the solutions adopted in the Polish legal system and the regulations of other EU Member States. The considerations presented in Chapter V provide the necessary context for a more detailed analysis of the legislative solutions that are the subject of research in this study.

The issues addressed in the following chapters concern the various institutions of the COVID-19 Special Act (and the CCP) adopted to combat the spread of the coronavirus. These considerations, through a detailed discussion of the instruments under consideration, aim to compare them with the previously presented standard of protection expressed in the ECHR, the CFR and the Constitution. Chapter VI is devoted first of all to remote hearings in the era of the COVID-19 pandemic. The considerations begin with a detailed presentation of the institution in question, including the historical background of its introduction, as well as the resolution of interpretive doubts arising in the practice of its application. On the basis of these findings, the compliance of the regulation with the standard of the right to a fair trial was then assessed and own legislative postulates of a de lege ferenda nature were presented. A similar approach was taken with regard to the provisions of COVID-19 concerning in camera hearings (Chapter VII) and the composition of the court (Chapter VIII).

The next Chapter IX deals with electronic service through the Information Portal. The considerations begin with an approximation of the material and personal scope of application of Article 15zzs9 (2)-(5) of the COVID-19 Special Act, as well as the premises for waiving electronic service under the provision in question. Only the development of a unified model for the application of the institution of electronic service and the clarification of emerging interpretative doubts made it possible to assess the compatibility of the provision in question with the right to a fair trial. The next part of the Chapter also sets out de lege ferenda postulates for electronic service in civil proceedings.

The last two chapters are devoted to the impact of the COVID-19 pandemic legislation on the course of civil proceedings. First, the solutions related to the suspension of procedural time limits under Article 15zzs of the COVID-19 Special Act are presented and the compatibility of this institution with the right to a fair trial standard set out in Chapters I and II is assessed (Chapter X). Subsequently, the provisions relating to enforcement proceedings, i.e. the suspension of judicial auctions of real estate serving the debtor’s housing needs and the suspension of enforcement of eviction orders, were analysed in accordance with the above scheme (Chapter XI). As these provisions have been repealed, the considerations are of a historical nature and therefore do not include de lege ferenda postulates. Despite the fact that the above-mentioned provisions are revoked from the legal order, their detailed analysis was necessary due to their significant impact on civil proceedings and the realisation of the individual’s right to a fair trial.

The study concludes with a verification of the initial thesis and research hypothesis and a concise synthesis of the considerations presented in the previous chapters.

1 Journal of Laws – Republic of Poland, 2024, item 340 (consolidated text).

2 Code of Civil Procedure (CCP) – Law of 17 November 1964 Code of Civil Procedure, Journal of Laws 2023, item 1550 (consolidated text).